on Oct 30th, 2009The Problem of “Willfulness”
The use of the term “willful” in connection with federal criminal statutes remains needlessly confusing and harmful to the fair administration of justice. A recent Fifth Circuit case offers yet another example. In United States v. Allen, No. 08-11041 (5th Cir., Oct. 28, 2009), a defendant was convicted of criminal contempt under 18 U.S.C. § 401(3). The elements of criminal contempt under that statute (according to the Fifth Circuit) are “‘(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.’” Slip op. at 10 (citation omitted). The district court, asked to define “willful” by defense counsel, stated: “I don’t think that’s necessary, but one of the things I obviously took into account is whether it was done – it was a volitional act done by someone who knew or reasonably should have been aware that his or her conduct was wrong.” Id. at 11.
On appeal, the defendant argued that the district court incorrectly defined the term “willful.” The Fifth Circuit agreed: “We have explained that ‘willfulness’ in the context of the criminal contempt statute at a minimum requires a finding of recklessness, which requires more than a finding that an individual ‘reasonably should have known’ that the relevant conduct was prohibited. Thus, the district court clearly erred.” Slip op. at 12. Defense counsel had failed to object in the district court so the Fifth Circuit applied the plain error doctrine and affirmed the conviction. Id.
The term “willful” in federal criminal practice is used to describe any number of mental states. Although the district court’s conflation of willfulness and negligence in Allen is an extreme example, the Fifth Circuit’s own doctrine in the contempt context – which equates willfulness with recklessness – is itself remarkable. “As a general matter, when used in the criminal context,” the Court stated in Bryan v. United States, 524 U.S. 184, 191 (1998), “a ‘willful’ act is one undertaken with a ‘bad purpose.’” Id. at 191. The use of the term “willful” in a federal criminal statute frequently invites battles over whether Congress intended to require proof that a defendant violated a known legal duty. See, e.g., id. at 196 (holding that the term “willfully” in 18 U.S.C. § 924(a)(1)(D) does not require proof that defendant actually knew of a federal licensing requirement); Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (holding that Congress intended, in 31 U.S.C. § 5322(a), that a jury must conclude that defendant knew that structuring currency transactions was prohibited by law before a conviction for a “willful” violation may occur). The term “willful” is not alone in its lack of repute. The concepts of “specific intent” and “general intent” create similar confusion. See Liparota v. United States, 471 U.S. 419, 433 n.16 (1985) (commenting that a “useful” jury instruction might “eschew use of difficult legal concepts like ‘specific intent’ and ‘general intent’”).
The drafters of the Model Penal Code got it right by banishing the terms “willfully,” “specific intent,” and “general intent.” See Dixon v. United States, 548 U.S. 1, 16 (2006) (noting that Section 2.02(2) of the Model Penal Code does not embrace the term “willfully” but instead defines “purposely,” “knowingly,” “recklessly,” and “negligently”). As Judge Learned Hand, in an exchange with Professor Herbert Wechsler (the reporter for the Model Penal Code), put it: “[Willfully is] an awful word! It is one of the most troublesome words in a statute that I know. If I were to have the index purged, ‘willful’ would lead all the rest in spite of its being at the end of the alphabet.” United States v. Aversa, 984 F.2d 493 (1st. Cir. 1993), vacated sub nom. Donovan v. United States, 510 U.S. 1069 (1994) (quoting American Law Institute, Model Penal Code § 2.20, at 249 n. 47 (1985)). That Congress and so many judges, after all these decades, have failed to absorb Judge Hand’s message is cause for serious concern.
